[2024] KESDT 94 (KLR)

Mohamed v Kenya Aquatics & 2 others (Appeal E052 of 2023) [2024] KESDT 94 (KLR) (9 February 2024) (Decision)

Neutral citation: [2024] KESDT 94 (KLR)

Republic of Kenya

In the Sports Disputes Tribunal

Appeal E052 of 2023

E. G. Kiplagat, Chair, A.M Owinyi & Benard Murunga Wafula, Members

February 9, 2024

Between

Ridhwan Mohamed

Appellant

and

Kenya Aquatics

1st Respondent

Maureen Owiti

2nd Respondent

Collins Margiri

3rd Respondent

Decision

1. The appellant (Ridhwan Mohamed) is a swimmer; the first respondent is the national federation responsible for swimming; the second and third respondents are officials of the first respondent and the Interested Party (Swaleh Abubakar Talib) is also a swimmer.

Brief Background: 2. The appellant approached the Tribunal in November 2023 after the national trials had been held and after the Kenya Aquatics had prepared a list of the selected athletes to represent the country in the World Aquatics Championships to be held in Doha.

3. The appellant protested that the first respondent had prepared the selection list prematurely whilst World Aquatics, the world governing body of swimming, had given time until December 19, 2023 for qualifying times to be registered.

4. The Tribunal dismissed the Appeal on December 11, 2023 as it was based on conjecture and no better times had been furnished before the Tribunal that would have altered the selection.

5. The appellant improved his times before December 19, 2023 and filed an application for Review on December 19, 2023 based on new evidence of his better times.

6. The directions of the Hon. the Chair of the Tribunal on December 21, 2023 were to the effect that an interim order was issued retraining the respondents (that is Kenya Aquatics and its officials) from submitting the list of selected athletes. The matter was then scheduled for hearting of the application for Review before the selected Panel.

7. The Tribunal considered the same and ordered that the said times that had been furnished to the Tribunal were to be considered which had the effect of the appellant displacing the Interested Party as one of the selected athletes.

8. The Interested Party, who had not participated in the proceedings before the Tribunal filed an application in the High Court.

Analysis: 9. The Order made by the High Court was to this effect:1. The decision of the Tribunal dated January 15, 2024 and its consequential orders were set aside.2. SDTSC Appeal Number 52 shall be heard afresh under a different Chairperson other than Mrs Elynah Shiveka Sifuna.3. The Appeal shall be heard and determined within two days.

10. The Claimant filed the Application for the re-hearing of the Review Application as the decision of the High Court reversed only the decision of 15th January 2024.

11. It is important to note that whilst the High Court ordered the re hearing of the Application for Review before a panel in which Mrs Elynah Shiveka Sifuna was not the Chairperson, it did not make any ruling on her suitability or otherwise to Chair the Panel. At paragraph 54 and 55 of the Ruling the Judge held that the issue was not properly before him and she could not be condemned unheard. There is therefore no finding that the Panel was wrongly constituted for hearing the Review or indeed the Appeal that had initially filed. For abundance of caution on a point that hadn’t been canvassed properly, the Judge has directed that Mrs Elynah Shiveka Sifuna will not Chair the Panel to rehear the Application for Review.

12. The Hon. The Chair of the Tribunal has also exercised abundance of caution to not name Mrs Elynah Shiveka Sifuna on the Panel in capacity of member and replaced her with Mr E. Gichuru Kiplagat.

13. These decisions were taken to enable the matter proceed with alacrity and without the burden of the likelihood of the non-determination of the point raised at the Judicial Review level sticking out like a sore thumb.

14. A decision has been rendered on December 11, 2023 which had dismissed the Appeal by the appellant. The application for Review was lodged in time that is allowed by the Sports Disputes Tribunal Rules and was determined. This determination and the consequential orders were quashed.

15. It is not correct that the decision of December 11, 2023 was quashed. In any event that decision had dismissed the appellant’s application which necessitated the application for Review. To interpret consequence not to imply following as a result or effect would be to uphold an absurdity.

16. In the realm of legal interpretation, the principle of presumption against absurdity was pronounced in the case of Center for Rights Education and Awareness &others v. John Harun Mwau &others[2012]. The Court of Appeal at Nairobi emphasized the necessity for courts to avoid constructions that lead to absurd outcomes. It held as follows: -“These principles are not new. They also apply to the construction of statutes. There are other important principles which apply to the construction of statues which, in my view, also apply to the construction of a Constitution such as presumption against absurdity – meaning that a court should avoid a construction that produces an absurd result; the presumption against unworkable or impracticable result - meaning that a court should find against a construction which produces unworkable or impracticable result; presumption against anomalous or illogical result, - meaning that a court should find against a construction that creates an anomaly or otherwise produces an irrational or illogical result and the presumption against artificial result – meaning that a court should find against a construction that produces artificial result and, lastly, the principle that the law should serve public interest –meaning that the court should strive to avoid adopting a construction which is in any way adverse to public interest, economic, social and political or otherwise.”

17. Similarly, in the cases of Wambui & 10others v. Speaker of the National Assembly & 6others [2022] and Independent Electoral & Boundaries Commission v. Maina Kiai &others [2017], the courts reiterated recognition of the principle stating that it is the imperative to adopt a purposive approach in interpreting constitutional provisions.

18. The Tribunal does not agree that hearing the Review would be tantamount to breathing life in that which the High Court has declared dead.

19. The Court of Appeal stated in DT Dobie v Joseph Mbaria Muchina &another [1980] eKLR gave the wisdom that a court of justice should aim at sustaining a suit rather than terminating it. It is not the fault of the appellant that a Panel that was constituted to hear the matter and which heard the Review has been asked to rehear the matter.

20. The decision of the Tribunal dated January 15, 2024 was quashed. The proceedings before the Panel that led to that decision may by implication be vacated. But the pleadings on record are not quashed. Further, the decision before that which was the decision by the Hon. Chair of the Tribunal dated December 21, 2023 was not quashed. That decision restrained the respondents from submitting the names they had initially selected.

21. The Tribunal notes that the High Court decision hinged purely and solely on the non-involvement of the Interested Party in these proceedings. The Interested Party has been allowed to participate in the proceedings and has raised certain matters which may not appreciate the timelines set by the High Court. The technicalities raised in the Replying Affidavit of the Interested Party have been considered by the Tribunal.

22. The Tribunal has also considered the submission that the appellant only served upon the Interested Party the Application for Review and not the Application that was filed at the onset – which was the application dismissed on December 11, 2023. The Tribunal notes that an Application for Review follows the decision that was issued earlier and in making the Application, the same has referred to the matters that were canvassed and dismissed. In effect, the initial Application is subsumed in the Review. Indeed, the Application for Review was on the basis of new evidence and therefore contained more matter than what had been previously pleased and determined.

23. It was not the wish of the Tribunal to hear and determine this matter within two days. But doing the best it can based on complying with the orders of the High Court, the Tribunal has set the hearing to be heard and concluded within the confines of the time allotted and noting the effluxion of the window to have the participating athlete’s name entered.

24. The Tribunal has the jurisdiction to consider the sporting merit that informs selection to competitions.

25. Before the Tribunal are the times that were attained by the appellant in Coimbra when he bettered his times. There are no other contra-times that have been brought before the Tribunal that could be considered in the argument on why the sporting merit is not being followed.

26. The Interested Party has not demonstrated that he attained better times that would improve the sporting merit. What he has done is to discredit the allowance of any times after the national selection. He has cited the preference given to the appellant is his time is considered.

27. To the extent that improvement of times was available for all athletes and noting that the appellant had taken the initiative to improve his timings within the times allowed by World Aquatics which was December 19, 2023, the Tribunal finds that there are actual times provided before it for consideration at this moment. This is away from the conjencture of what if other athletes had bettered their times. They would have favoured the Tribunal or the Kenya Aquatics those times for consideration.

28. Exercising its discretion and having looked at the sporting merit critically and the need to have the best available athlete represent the country at any one time and within any allowable limits by the international federations such as Wrold Aquatics, the Tribunal finds that the name of Ridhwan Mohammed should replace the name of Swaleh Abubakar Talib that had been selected earlier.

29. In addition, the Tribunal notes that parties took the liberty to copy the Panel members in correspondence between themselves. The electronic mail from the Hon. the Chair was for expediency of delivery of the Directions to all the parties and the Panel. It was not an invitation to canvass the matter by electronic mail. This is deprecated.

30. The orders of the Tribunal are therefore that:a.That the application brought by the appellant is allowed.b.That the Tribunal reviews its order issued on December 11, 2023. c.That the Tribunal directs that the Kenya Male Team Entries to World Aquatics shall be the following male swimmers;i.Maina Monyo;ii.Ridhwan Mohammed;d.Each party is to bear its own costs.

DATED AND DELIVERED AT NAIROBI THIS 09TH DAY OF FEBRUARY, 2024. SIGNED:E. GICHURU KIPLAGAT - MEMBERPANEL CHAIRPERSONALLAN OWINYI - MEMBERBENARD WAFULA MURUNGA - MEMBER